Opinion
A22A1258
05-04-2022
ANDREW LEE SMITH v. THE STATE.
The Court of Appeals hereby passes the following order:
In July 2018, Andrew Lee Smith entered a non-negotiated guilty plea in the Superior Court of Mitchell County to homicide by vehicle in the first degree and serious injury by vehicle. In December 2021, Smith filed a pro se motion for out-of-time appeal, which the trial court denied. Smith then filed this appeal.
In a recent case, the Supreme Court determined that a trial court lacks authority to grant an out-of-time appeal. Cook v. State, Ga., (5) (Case No. S21A1270, decided Mar. 15, 2022). This holding is to be applied to "all cases that are currently on direct review or otherwise not yet final." Id. Smith, therefore, "had no right to file a motion for an out-of-time appeal in the trial court; his remedy, if any, lies in habeas corpus." Rutledge v. State, Ga., (Case No. S21A1036, decided Mar. 15, 2022). Rather than denying Smith's motion for out-of-time appeal, the trial court should have dismissed it. See id.
Accordingly, the trial court's order denying Smith's motion for out-of-time appeal is hereby VACATED, and this appeal is hereby REMANDED to the trial court, which is DIRECTED to enter an order dismissing the motion for out-of-time appeal.